D'Angelo developer's suit against Dumont is tossed out

A judge last week tossed out part of a lawsuit filed by a prospective developer of the former D’Angelo Farms in Dumont that claimed the borough has failed to provide enough affordable housing opportunities.

In his ruling on June 24, state Superior Court Judge William Meehan, sitting in Hackensack, decided the developer can’t file a builder’s remedy lawsuit until it seeks to resolve its complaint with the state Council on Affordable Housing.

But, the judge reserved an opinion on whether the borough’s housing element and fair share plan is "substantially deficient," saying "that will be determined by COAH."

Because the borough’s plan is pending with COAH — it was filed in December — it’s protected from a lawsuit until the developer exhausts what’s called "administrative remedies," the judge ruled.

Landmark Dumont, the limited liability company under contract to buy the seven-acre farm, argued that the requirement to exhaust administrative remedies with COAH didn’t apply in this case because the borough’s filing of a plan was a sham.

The developer argued that the borough waited to file its plan until Landmark requested to rezone the farm.

Furthermore, the developer argued, the requirement to exhaust administrative remedies would be pointless because the borough’s plan is based on invalid affordable housing rules.

When the plan was adopted by the Borough Council and Joint Land Use Board, COAH had no rules — in fact, it still doesn’t.

New rules have been proposed, but it’s unlikely they’ll be effectuated before the fall.

In essence, Landmark argued, the borough never participated in the COAH process until learning of a developer with aspirations to build affordable housing, so it quickly threw together a plan based on invalid rules.

Nonetheless, the judge determined, COAH is best-suited to address the developer’s complaint.

"Because COAH is in a state of flux," said Borough Attorney Gregg Paster, "it’s very difficult for a court to address issues in the lawsuit.

"Obviously, we’re very pleased the judge honored past precedent," he added. "The borough continues to recognize its obligation to address the zoning designation of the [farm] and is working toward a satisfactory result."

Representatives of FARM’D (Families Advocating a Reasonable Masterplan in Dumont), the group opposed to high-density development of the farm, also were happy with the judge’s ruling, said Rachel Bunin, one of its founders.

On behalf of FARM’D, Bunin said, "We continue to urge the governing body to do due diligence, while investigating zoning options for the [farm] consistent with the current neighborhood to preserve Dumont’s quality of life.

"FARM’D firmly believes it’s not Dumont’s obligation to provide windfall profits to any developer, or the current landowner," she added, "and we look forward to the continued participation of the residents in this process."

Attorney Antimo DelVecchio, who represents Landmark, did not return a call seeking comment.

Paster said he and other borough professionals involved with the case are recommending the council reintroduce an ordinance to rezone the farm "sooner, rather than later."